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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ingram v. Bristol Street Parts [2007] UKEAT 0601_06_2304 (23 April 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0601_06_2304.html Cite as: [2007] UKEAT 0601_06_2304, [2007] UKEAT 601_6_2304 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MR P R A JACQUES CBE
MR M WORTHINGTON
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
UKEAT/0586/06/LA
For the Appellant | MR JOE SYKES (Consultant) Employment Lawyers 26 Farringdon Street London EC4A 4AB |
For the Respondent | MS ANYA PALMER (of Counsel) Instructed by: Messrs Hammonds Solicitors Rutland House 148 Edmund Street Birmingham B3 2JR |
SUMMARY
Practice and Procedure – 2002 Act and Pre-action Requirements
Unfair Dismissal – Contributory fault
Employee dismissed for gross misconduct. It was not contended that the dismissal was unfair under general unfair dismissal law, but that it was automatically unfair for failure to comply with the statutory dismissal procedures. The Tribunal held that it was unfair but reduced both the compensatory and basic awards to nil on the grounds that there was 100% contributory fault. The employee appealed claiming that the Tribunal could not lawfully reduce the compensation in this way. The employer cross appealed against the finding that there was an automatically unfair dismissal.
The EAT upheld the cross appeal. The finding on compensation was then strictly irrelevant. However, the EAT went on to find that the Employment Tribunal had erred in its approach to the calculation of the basic award, but not its approach to the compensatory award.
In the event, the appeal was dismissed.
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
The background
"At [that disciplinary meeting] the question of disciplinary action against you, in accordance with the Company's Disciplinary Procedures, will be considered with regard to:-
1. That you failed to notify the company on several occasions when monies in your safekeeping had been taken from your desk drawer resulting in further considerable losses.
2. That you hid those losses by fraudulently offsetting cash and cheques received by you against earlier invoices whose payments in turn were used to pay even earlier invoices – "Teeming and Lading".
We consider these actions to be gross misconduct which may lead to your dismissal."
Was there an automatic unfair dismissal?
"Step 1: statement of grounds for action and invitation to meetings
1 - (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2: meeting
2 – (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless –
(a) the employer has informed the employee what the basis ` was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information."
Step 3 concerns the right of appeal and we need say no more about that.
"Step 2(2)(a), referring to the disciplinary meeting, requires that the employer must inform the employee of the basis upon which it is alleging that the employee's conduct is worthy of disciplinary consideration. Put another way, the tribunal take this to be a requirement, placed upon the employer to give the employee an opportunity to consider the evidence that the respondent is going to rely on in the charges against her, prior to the meeting and with adequate opportunity for her to consider that before she enters into the meeting. (That second point is dealt with by step 2(2)(b)). Our findings of fact above reveal that at each of the three dates of the meeting the claimant was given information either immediately prior to or during the meeting. On each of those occasions the claimant was given wedges of paperwork and on 17 and 21 October invited to comment immediately upon what the respondent said that paperwork revealed."
"Taking these considerations into account, in our view, the proper analysis of the employer's obligation is as follows. At the first step the employer merely has to set out in writing the grounds which lead him to contemplate dismissing the employee, together with an invitation to attend a meeting. At that stage, in our view, the statement need do no more than state the issue in broad terms. We agree with Mr Barnett that at step one the employee simply needs to be told that he is at risk of dismissal and why. In a conduct case, this will be identifying the nature of the misconduct in issue, such as fighting, insubordination or dishonesty. In other cases it may require no more than specifying, for example, that it is lack of capability or redundancy. That is consistent, we think, with the approach which this tribunal has adopted in relation to grievance procedures in the Canary Wharf and other cases. Of course, most employers will say more than this brief statement of grounds, but compliance with the statutory minimum procedure is in our view met by a limited written statement of that nature.
It is at the second step that the employer must inform the employee of the basis for the ground or grounds given in the statement. This information need not be reduced into writing; it can be given orally. The basis for the grounds are simply the matters which have led the employer to contemplate dismissing for the stated ground or grounds. In the classic case of alleged misconduct this will mean putting the case against the employee; the detailed evidence not be provided for compliance with this procedure, but the employee must be given sufficient detail of the cae against him to enable him properly to put his side of the story. The fundamental elements of fairness must be met."
In essence, the obligation is to provide a basic outline sufficient to enable the employee to understand the fundamental nature of the case and to give a response.
"does not mean all the detailed evidence that may be relied on but rather a sufficiently detailed statement of the case against him to enable him properly to put his side of the story"
The calculation of compensation
The basic award
"(c) [if] the amount of the award under section 118(1)(a), before any reduction under section 122(3A) or (4), is less than the amount of four weeks' pay the employment tribunal shall, subject to subsection (1B), increase the award under section 118(1)(a) to the amount of four weeks' pay."
We consider subsection (1B) below.
"Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."
"An employment tribunal shall not be required by subsection (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer."
The compensatory award
"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."
"an adjustment shall be made in the amount awarded under section 118(1)(b) and shall be applied immediately before any reduction under section 123(6) or (7)."
Disposal